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NEWS

Feb. 11 --As the public comment period for the Occupational Safety and Health
Administration's proposed silica rule closed Feb. 11, trade associations and
businesses submitting comments appeared virtually unanimous in their opposition
to the agency's proposal.

With few exceptions, industry commenters
claimed that OSHA failed to show that the proposal is necessary, economically
practical or technologically feasible. Critics of the rule deployed a variety
of arguments, including that the agency underestimated costs, used old data,
failed to adequately study affected industries, relied on false assumptions,
contravened its procedural requirements and provided too little evidence to
support its proposal.

“With silicosis in long-term decline, OSHA had a
duty to explain clearly and logically how and why its proposed rule is
necessary and the appropriate solution for the limited, remaining
silica-related disease cases,” the U.S. Chamber of Commerce said in its
comments. “Instead, OSHA built its proposed rule on a chain of assumptions,
did not properly analyze the most recent and current mortality and exposure
data, and it failed to research or analyze the impact and value of this
proposal on the hardest-hit industries.”

Although the deadline has
passed, there is generally a lag time between when comments are submitted to
the docket and when they are publicly available. Comments from large groups
such as the National Association of Home Builders, Laborers' International
Union of North America, American Petroleum Institute and American Chemistry
Council have yet to be posted to regulations.gov, the federal government's
online rulemaking portal.

But the initial 400 substantive comments
provide a snapshot of stakeholder reaction to OSHA's proposal to regulate
respirable silica, which hews to the familiar pattern of industry opposing the
new rule and labor and public health organizations favoring it.

OSHA's
Silica Proposal

The proposed rule would update the permissible exposure
limit for the first time since it was adopted in 1971, lowering it to 50
micrograms of silica per cubic meter of air. The current limit for general
industry is approximately 100 micrograms and about 250 micrograms for
construction and shipyards.

In addition to setting a new exposure
limit, the proposed rule also includes provisions for measuring silica
exposure, using effective methods to reduce exposure, providing medical exams
to workers with high exposures and training workers about silica hazards.

OSHA said 2.2 million workers are exposed to respirable silica in their
workplaces, with 1.85 million in construction. The agency estimated the
proposed rule would save nearly 700 lives per year.

Explaining the
Rule

The close of the comment period marks a significant milestone in
OSHA's long-running campaign to set a new workplace standard for silica, which
has been on its regulatory agenda since 1997.

OSHA must respond to the
criticisms and recommendations contained in the public comments. The agency
will include its responses--and probably some of the comments in support of
its proposal--in the preamble to the final rule as an explanation for how it
arrived at its ultimate version.

The agency has several audiences for
its explanation, Jeffrey Lubbers, an administrative law professor at American
University's Washington College of Law, told Bloomberg BNA Feb. 10. OSHA will
be addressing the staffers at the White House Office of Management and Budget,
who will review the final rule before it is published; federal judges, who
might preside over a legal challenge of the standard; and those who must
comply with the new standards, Lubbers said.

Diversity in Comments

The responses, both for and against the rule, varied widely in length,
sophistication and tone. For example, compliance officer Philip Rice of Fann
Contracting Inc. submitted a 30,000-word response, critically answering most
of the 87 questions that OSHA included in the proposed rule's preamble.

And then there were commenters, like private citizen Pat Cochran, who took a
more concise approach. In a 53-word comment, Cochran said that silica is unsafe
to breath and there's no sense arguing about it.

Industry
Opposition

The strongest industry opposition to the rule thus far
seems to have come from the construction, foundry and masonry industries.

The American Subcontractors Association Inc. called on OSHA to immediately
withdraw its proposed rule because it is “so fundamentally flawed that it
cannot be remedied through the current rulemaking process.”

The rule is
poorly designed for the construction industry, the subcontractors association
said. For example, it said routine medical surveillance of workers is
impractical in that industry, which is a dynamic, multi-employer,
high-turnover environment.

Commenters from the construction industry
also blasted the standard's list of specific engineering and work-practice
control methods for specific tasks, known as Table 1. Companies that use the
methods in Table 1 would be exempt from certain compliance requirements, such
as dust monitoring.

“The currently proposed Table 1 clearly
demonstrates the lack of understanding by OSHA as to how tools and equipment
are operated in the construction industry in each of the listed tasks,” wrote
Eric Olson, safety director for the Western Construction Group.

The
Ohio Cast Metals Association challenged OSHA's economic analysis, which pegged
the cost to foundries of complying with the new silica rule at $1,200. The
group said the agency's estimate isn't a “serious effort at determining the
cost, but rather a political document drafted to create the public perception
that the benefits of the proposal far outweigh the costs.”

Foundries
have decades of experience dealing with silica control, according to Wear-Tek
Inc. President Bill Reynolds, and the dust control levels that OSHA is
proposing will have a devastating impact on the majority of the foundry
industry.

The National Concrete Masonry Association said the proposed
rule's prohibition on dry sweeping isn't feasible for the concrete block and
brick industry. The masonry group also said that compliance costs in the
industry, which makes commodity products with a low profit margin, will run
more than five times OSHA's estimate.

“For an industry that has been
nearly crippled by the worst construction recession in memory, the financial
stress of this regulation could not come at a worse time,” the masonry group
said.

Trade associations and business frequently complained that OSHA
didn't allow sufficient time for comments, despite the agency's 47-day and
subsequent 14-day extensions. Several commenters requested that OSHA convene a
new small business panel to review the rule, as it's been more than a decade
since that panel analyzed the silica proposal.

Some Industry
Support

Not all industry commenters, however, wholly opposed the rule.
Perhaps the most notable standout is the National Industrial Sand Association,
which supports worker-protection provisions in the proposal such as exposure
monitoring, medical surveillance and dust controls. But the sand group also
argues the lowered permissible exposure limit isn't necessary and will cause
economic harm.

The Associated General Contractors of New York State LLC
also supports most of the proposed rule, including the reduced exposure limit,
calling it “fair” and “more field friendly than some recent standards.”

The New York contractor group still has some criticisms of the proposal.
For example, the group objects to the prohibition on worker rotation to
achieve compliance with the exposure limit, saying it seems illogical to
require a worker to wear a respirator if a contractor could switch personnel
before that would be necessary.

Safety and Health Groups Support

The American Society of Safety Engineers broadly supports the proposed
rule, including the reduced exposure limit. The safety group said the proposal
probably isn't technically or economically feasible for all employers, and
infeasibility is likely to be the premise for many defenses against silica
citations.

“More than any substance OSHA has regulated since asbestos and
lead, silica has an extensive record of past health issues based on
accumulated evidence of its hazards,” the American Industrial Hygiene
Association said in its comments supporting the proposal. “Fortunately, the
evidence also shows that feasible controls can be used to protect workers from
silica.”

The National Institute for Occupational Safety and
Health--which published a recommended exposure limit of 50 micrograms for
silica 40 years ago--filed comments supporting the rule. NIOSH's detailed
input includes information on silica exposure during hydraulic fracturing and
recommendations on improving the list of exposure-control methods described in
Table 1.

The American Public Health Association and the American Cancer
Society endorsed the proposed rule.

Rulemaking Continues

In the
AFL-CIO's comments strongly endorsing the proposed rule, health and safety
director Peg Seminario emphasized how long the rulemaking has taken, even
though the hazards of silica exposure have long been recognized.

“This
critical protection is long overdue,” Seminario wrote.

The next step in
the rulemaking process is public hearings, scheduled to begin March 18. The
hearings will provide an opportunity for witnesses to provide testimony and
cross-examine one another, further building the public record for the silica
proposal.

To contact the reporter on this story: Robert
Iafolla in Washington at riafolla@bna.com

To contact the editor
responsible for this story: Jim Stimson at jstimson@bna.com

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